ECJ: One more chance for Nestlé's QUICKY bunny

ECJ reverses CFI's decision to deny Nestlé's QUICKY bunny registration on relative grounds - but nothing is decided yet. In its judgment of 20 september 2007, the ECJ overturned the CFI's decision of 22 february 2006 to dismiss Nestlé's appeal against the OHIM's refusal to register its QUICKY word/device mark on the grounds of earlier rights. The applicant, Nestlé S.A., the notorious Swiss food giant, applied for the registration of its QUICKY word/device mark, depicted on the left, on 6 February 1997, i.e. shortly after the OHIM had become operational. The mark shows the fairly well-known cartoon bunny usually found on the packaging of Nesquik instant chocolate powder, with a capital N around its neck and together with its name QUICKY printed underneath. Quick restaurants SA, a Belgian maker of burgers and French fries (they should really be referred to as Belgian fries - cui honorem, honorem), opposed the application on the basis of its earlier national and/or international QUICKIES (word) and QUICK (word and word/device, see below) marks, registered, among other things, in France and the Benelux, where they are widely used and may even be well-known. Since the marks were registered respectively claimed for more or less the same goods in classes 29, 30 and 32, the legal issues of the case basically boil down to two questions: Does QUICKIES or QUICK have normal distinctiveness, given that the meaning of the word quick in English may well be considered descriptive for fast food? Does the fact that the application is for a word/device mark featuring the Nesquik bunny - rather than just a word mark - rule out similarity and thus likelihood of confusion? On substance, this is not really a breathtaking case. But some aspects make it still worth reading: First, the French still seem to be having some difficulties in pronouncing words derived or taken from foreign languages, in particular the English language. One of the most discussed arguments through the instances was whether the French would omit the final "-s" in pronouncing "Quickies", as they do, for instance, in saloperies, maladies or épidémies, i.e. in other words likely to be used in the context of le fast food (and more particularly in their plural). Second, it is noteworthy that only two out of a total of seven arguments on which the appeal was based were even considered at all by the Court of Justice (at least, one of them was sufficient to have the judgment reversed); the remaining five were rejected on the grounds that they either aimed at attacking the factual, rather than the legal, findings of the CFI, or that the appellant was precluded from raising these arguments at this stage. This leads to the question of why the findings on the facts had not been attacked earlier (the CFI's findings reflected those already summarized in OHIM's decisions), and why Nestlé failed to file crucial legal arguments (e.g. the objection of non-use in accordance with Art. 43 (2) of the Regul…